CHAPTER XXII.
OF IMPEACHMENTS.
WE are next to consider what courts or judicial tribunals are created by
the Constitution itself, and what have been created under the power to
that effect given to congress.
The language of the text is, that the judicial power of the United
States shall be vested in one supreme court, and in such inferior courts
as congress may from time to time ordain and establish.
But no mention is made in any part of this article, otherwise than by
way of exception as to the mode of trial, of a very high tribunal, which
seems rather to have been supposed to flow from the formation of the
Constitution, than to be expressly created by it.
The first mention of it is contained in the following words, in a
preceding article: The house of representatives -- shall have the sole
power of impeachment.
In the third section of the same article, it is said, that the senate
shall have the sole power to try all impeachments. When sitting for that
purpose, they shall be on oath or affirmation. When the president of the
United States is tried, the chief justice shall preside, and no person
shall be convicted without the concurrence of two-thirds of the members
present.
Impeachments are thus introduced as a known definite term, and we must
have recourse to the common law of England for the definition of them.
In England, the practice of impeachments by the house of commons before
the house of lords, has existed from very ancient times. Its foundation
is, that a subject entrusted with the administration of public affairs,
may sometimes infringe the rights of the people, and be guilty of such
crimes as the ordinary magistrates either dare not or cannot punish. Of
these, the representatives of the people or house of commons cannot
judge, because they and their constituents are the persons injured, and
can therefore only accuse. But the ordinary tribunals would naturally be
swayed by the authority of so powerful an accuser. That branch of the
legislature which represents the people, therefore, brings the charge
before the other branch, which consists of the nobility, who are said
not to have the same interests, or the same passions as the popular
assembly.
Such is the English theory, and it well suits a government in which
there are three distinct and independent interests, and in which the
crown, possessing the power of appointing the high officers, who are
most frequently the subjects of impeachments, has also the sole power to
carry on or withdraw prosecutions in the ordinary courts. For no
misconduct, however flagrant, committed by such men, could the people
obtain redress, if the monarch inclined to refuse it, unless a mode of
proceeding had been invented which did not require his assent, and which
he could not control, and therefore, as heretofore observed, he cannot
defeat the inquiry by a previous pardon, although in the exercise of
another branch of his prerogative, he may delay it by adjourning or
proroguing the session of the parliament.
The difference between the two governments has no doubt already occurred
to the reader. Our ordinary tribunals are not dependent on the pleasure
of him who appoints the judges, nor are they to be influenced by the
authority of the accuser in a case of this sort more than in any other,
for with us the people are considered as the. accusers in all cases
whatever. In England, the king is the accuser, (except in the instance
now under consideration,) and all offences are charged to have been
committed against his peace, his crown and dignity.
Still less are the weight and influence of any man, however exalted his
station, or great his wealth, likely to deter our judges from an
impartial administration of justice.
Yet although the reasons are not equally cogent, they will be found on
examination sufficient to warrant the introduction of the system into
our code.
We shall now proceed to consider --
1. The necessity or utility of impeachments.
2. The necessity or utility of erecting a separate tribunal for the
trial of impeachments.
3. The propriety of rendering the senate such a tribunal.
4. The persons liable to be impeached.
5. The constitution of the court, its mode of proceeding, and the extent
and effect of its judgments.
1. The delegation of important trusts, affecting the higher interests of
society, is always from various causes liable to abuse. The fondness
frequently felt for the inordinate extension of power, the influence of
party and of prejudice, the seductions of foreign states, or the baser
appetite for illegitimate emolument, are sometimes productive of what
are not unaptly termed political offences, [1] which it would be
difficult to take cognizance of in the ordinary course of judicial
proceedings.
2. The involutions and varieties of vice are too many, and too artful to
be anticipated by positive law, and sometimes too subtle and mysterious
to be fully detected in the limited period of ordinary investigation. As
progress is made in the inquiry, new facts are discovered which may be
properly connected with others already known, but would not form
sufficient subjects of separate prosecution. On these accounts, a
peculiar tribunal seems both useful and necessary. A tribunal of a
liberal and comprehensive characters confined as little as possible to
strict forms, enabled to continue its session as long as the nature of
the case may require, qualified to view the charge in all its bearings
and dependencies, and to appreciate on sound principles of public policy
the defence of the accused; the propriety of such a separate tribunal
seems to be plain, but not upon the assumed ground that the judges of
the supreme court would not possess sufficient fortitude to perform the
duty, or sufficient credit and authority to reconcile the people to
their decisions. [2]
3. To compose this court of persons wholly distinct from the other
branches of government -- to form a permanent body for this single
purpose -- and to keep them always collected at the seat of government
for the possible occurrence of an impeachment, would be as inconvenient
as to appoint and collect such a body from time to time, when art
impeachment is determined on.
On a review of all the departments of government provided by the
Constitution, none will be found more suitable to exercise this peculiar
jurisdiction than the senate.
Although like the accusers, they are representatives of the people, yet
they are by a degree more removed, and hold their stations for a longer
term. They are therefore more independent of the people, and being
chosen with the knowledge that they may, while in office, be called upon
to exercise this high function, they bring with them the confidence of
their constituents that they will faithfully execute it, and the implied
compact on their own parts that it shall be honestly discharged.
Precluded from ever becoming accusers themselves, it is their duty not
to lend themselves to the animosities of party or the prejudices against
individuals which may sometimes unconsciously induce the house of
representatives to the acts of accusation. Habituated to comprehensive
views of the great political relations of the country, they are,
naturally the best qualified to decide on those charges which may have
any connexion with, transactions abroad, or great political interests at
home, and although we cannot say, that like the English house of lords
they form a distinct body, wholly uninfluenced by the passions, and
remote from the interests of the people, yet we can discover in no other
division of the government a greater probability of impartiality and
independence.
Nor does it form a solid objection in point of principle, that in this
peculiar instance, a part of the legislative body should be admitted to
exercise judicial power. In some degree all legislative bodies
necessarily possess such a power. We have seen that for sufficient cause
they may expel any of their own members -- they may try and punish
others for attempts to corrupt, bribe, or intimidate them, and they may
punish for what are technically termed contempts committed in their
presence, in all which they act judicially. But it is sufficient, to
close the subject, that the people at large have concluded that this
power would be best deposited in this body.
4. From the reasons already given, it is obvious, that the only persons
liable to impeachment, are those who are or have been in public office.
All executive and judicial officers, from the president downwards, from
the judges of the supreme court to those of the most inferior tribunals,
are included in this description. But in the year 1796, a construction
was given to the Constitution, founded, it is believed, merely on its
phraseology, by which a member of the senate was held not to be liable
to impeachment. Their deliberations, after the arguments of counsel,
being held in private, we can only infer from those arguments, that the
term officers of the United States, as used in the Constitution, was
held by a majority of the senate, not to include members of the senate,
and on the same principle, members of the house of representatives would
also be excluded from this jurisdiction.
An amendment to the Constitution in this respect would perhaps be
useful. A breach of duty is as reprehensible in a legislator as in an
executive or judicial officer, and if this peculiar jurisdiction
possesses so much value in respect to the two latter, it is difficult to
conceive why the public should not have the benefit of it in regard to
the former.
No apprehensions of partiality in favour of one of their own body need
to be carried so far as to require the substitution of another tribunal.
In England, where there is not a greater portion of public virtue than
here, peers are necessarily impeached before peers, and members of the
house of commons have been frequently the subjects of impeachment.
Judges are liable to trial for every offence before their brethren, and
it is in no case to be presumed, that a fair and full administration of
justice would be wanting. Of great public delinquencies the people do
not long remain in ignorance. If the offences of a member of the house
of representatives were culpably passed over by his brethren, the people
by the recurrence of the periodical election would soon be enabled to
substitute others to prefer the accusation, and, being sensible of this,
the house would be slow to expose themselves to the reproach of their
constituents, and the loss of public confidence, by omitting to do their
duty. The senate is obliged to receive and decide on the charge, and to
the strongest moral obligations is added that of an oath or affirmation.
It is not probable that the effect of these United impulses would be
counteracted by other considerations, which would in themselves be
criminal.
5. The legitimate causes of impeachment have been already briefly
noticed. They can only have reference to public character and official
duty. The words of the text are treason, bribery, and other high crimes,
and misdemeanors. The treason contemplated must be against the United
States. In general those offences which may be committed equally by a
private person as a public officer, are not the subjects of impeachment.
Murder, burglary, robbery, and indeed all offences not immediately
connected with office, except the two expressly mentioned, are left to
the ordinary course of judicial proceeding, and neither house can
regularly inquire into them, except for the purpose of expelling the
member. But the ordinary tribunals, as we shall see, are not precluded,
either before or after an impeachment, from taking cognizance of the
public and official delinquency.
We have hitherto had but three instances of impeachment, the first of
which has already been noticed. As no decision was given on the merits,
it is impossible to say whether the charges, which were chiefly founded
on a conspiracy to invade the territories of the king of Spain, with
whom the United States were at peace, and to excite the Creek and
Cherokee Indians to concur in the outrage, would have been deemed by the
senate sufficient, if proved, to support the impeachment. The second, on
which a constitutional conviction took place, was against a judge of a
district court, and purely for official misconduct. The third was
against a judge of the supreme court, and was also a charge of official
misconduct. It terminated in an acquittal, there not being a
constitutional majority against him on any one article.
As articles of impeachment can only be exhibited by the house of
representatives, if it should happen that the senate in the course of
their executive functions or otherwise, became apprized of unlawful acts
committed by a public officer, and in their opinions, meriting at least
a public inquiry, it would be their duty to communicate the evidence
they possessed, whether actual or presumptive, to the house of
representatives, but the bare communication is all that would be
consistent with their duty. They would cautiously avoid to recommend or
suggest an impeachment, and the same would be the course pursued by the
president.
Articles of impeachment need not to be drawn up with the precision and
strictness of indictments. They must however be distinct and
intelligible. No one is bound to answer to a charge so obscure and
ambiguous that it cannot be understood. Additional articles may be
exhibited, perhaps at any stage of the prosecution; certainly before the
defendant has put in his answer or plea.
No precise number of senators is required to constitute the court, but
no person can be convicted without the concurrence of two-thirds of the
members, present. The vice president being the president of the senate,
presides on the trial, except when the president of the United States is
tried. As the vice president succeeds to the functions and emoluments of
the president of the United States whenever a vacancy happens in the
latter office, it would be inconsistent with the implied purity of a
judge that a person under a probable bias of such a nature should
participate in the trial and it would follow that he ought wholly to
retire from the court. It is not stated in the Constitution whether the
president of the senate is on the trial of an impeachment restricted, as
in legislative cases, to the casting vote. As he is constituted one of
the judges by being appointed to preside without any restriction, the
fair inference would be, that he is entitled to vote like the other
judges, but on the trial last mentioned of a judge of the Supreme Court,
the vote of the vice president does not appear in the printed journal.
The defendant is entitled to the benefit of counsel but it is not
necessary that he should be personally present; the trial may proceed in
his absence if he has had due notice to appear.
The consultations of the senate, as well upon incidental points as on
the main questions, are conducted in private, but the judgment is
rendered in public.
The judgment is of a limited and peculiar nature -- it extends no
further than to removal from office, and disqualification to hold and
enjoy any office of honour, trust, or profit, under the United States.
Herein we may perceive the importance and utility of this system under
our regulations. In England impeachments may be prosecuted for capital
crimes and the court may award capital punishment, of which many
instances occur in the history of that kingdom. Lord Strafford in the
reign of Charles I. and Lord Stafford in the reign of Charles II. were
beheaded on the sentences of the court which decided without the aid of
a jury, and both of them have been considered rather as victims to the
spirit of the times, than as merited oblations to justice. But with us,
although the party accused may be found guilty of the highest crime, his
life is not in danger before this tribunal, and in no cases are his
liberty and property affected: indictment, trial, judgment, and
punishment, still await him according to the usual course of law.
Why then, it may be asked, has this system been introduced, and why, if
the firmness and integrity of the ordinary tribunals cannot be
overpowered by any supposed influence of character, wealth, or office,
have we deemed it expedient to copy from a foreign nation an institution
for which there is not the same necessity, and which we do not allow
altogether to produce the same effects? One answer is, that the sentence
which this court is authorized to impose cannot regularly be pronounced
by the courts of law. They can neither remove nor disqualify the person
convicted, and therefore the obnoxious officer might be continued in
power, and the injury sustained by the nation be renewed or increased,
if the executive authority were perverse, tyrannical, or corrupt: but by
the sentence which may be given by the senate, not only the appointment
made by the executive is superseded and rendered void, but the same
individual may be rendered incapable of again abusing an office to the
injury of the public. It is therefore right and proper that the
president should be disabled from granting a pardon, and restoring the
offender to his former competency; but there is no restraint on his
pardoning when a conviction in the common course ensues, for such pardon
extends only to the punishment which is then pronounced, and does not
affect the sentence of the senate.
We may perceive in this scheme one useful mode of removing from office
him who is unworthy to fill it, in cases where the people, and sometimes
the president himself would be unable to accomplish that object. A
commission granted during good behaviour can only be revoked by this
mode of proceeding. But the express words of the Constitution also
extend to the president and vice president, who partake of the
legislative capacity, and are chosen by the people. When this corrective
jurisdiction is thus applied; when it reaches all judicial officers, all
civil officers appointed by the president during pleasure, and involves
in its grasp the vice president and the president himself, it is
difficult to conceive that it was intended to exempt men whose treachery
to their country might be productive of the most serious disasters,
because they do not come precisely within a verbal description supposed
to be exclusively applicable to those who, except in the two instances
of specific enumeration, receive commissions from the president. A
member of either house of the legislature betraying his trust and guilty
of the most culpable acts of an official nature is, under the decision
of the senate, liable, indeed, to expulsion, but not to impeachment;
liable to the ordinary course of legal proceedings, but not to
disqualification. Yet as from the judgment of this high tribunal there
is no appeal; as the decision which has been given in the case adverted
to is a judicial one, and probably will be held binding on themselves on
all future occasions, we must now receive it as the settled construction
of the Constitution.
Whether an amendment of the Constitution in this respect will ever be
made, is not for the author to anticipate.
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1. Federalist, No. 65.
2. This is one of the few points in which the author is compelled to
differ from that excellent work the Federalist.